Creating Fairness and Equality in the Workplace:
The role of the Human Rights and
Equal Opportunity Commission (HREOC).

 

Address by President John von Doussa
to the
Industrial Relations Society National Conference 2007

 30th March 2007


I would like to begin by acknowledging the Ngunnawal people on whose ancestral land we meet today.

What are the implications of WorkChoices for HREOC?

It is now 12 months since the introduction of WorkChoices radically restructured Australia’s industrial relations system.  Today, I propose to reflect on the implications of WorkChoices for the Human Rights and Equal Opportunity Commission (HREOC) and to outline reforms HREOC believes are necessary to safeguard fairness and equality in the workplace.  

The WorkChoices legislation left HREOC’s statutory power to investigate and conciliate complaints of unlawful discrimination in employment untouched.

By leaving HREOC’s functions intact, and by preserving the unlawful termination provisions in the Workplace Relations Act, the government has recognized the importance of protecting people in the workplace from discrimination and unlawful termination.1

The message is clear: while companies with fewer than 100 employees are now exempt from unfair dismissal laws, all businesses, regardless of their size, must still adhere to federal and state equal opportunity laws.  

Although, HREOC’s statutory functions have not changed, the restructuring of the industrial relations system is having significant implications for the work of HREOC.

First, in the post WorkChoices environment HREOC is receiving an increased number of employment-related complaints under federal discrimination laws.  While employment has always been the main area of complaint under these laws, the number of employment-related complaints in the June-December 2006 was double the number received in the same period in 2005.2

HREOC’s investigations of these complaints does not suggest that there is any increase in the proportion that lack substance.  In other words, I do not think the rise in complaints number is a statistical blip, caused by people trying it on to test the HREOC system.  

The increase in complaints did not come as a surprise. At the time of the introduction of WorkChoices it was widely anticipated that many matters which had previously been dealt with by the Australian Industrial Relations Commission under its unfair dismissal jurisdiction would proceed instead as claims for unlawful discrimination.  In recognition of the likely increase in complaints, HREOC received a substantial increase in funding from the federal government.   

Second, HREOC is keenly aware of the potential human rights implications of WorkChoices on the rights of Australian workers. HREOC’s primary statutory function is to promote the acceptance of human rights in Australia. We maintain a watching brief on whether Australian workplaces reflect the basic human rights principles of fairness and equality. To this end, HREOC continues to promote acceptance and understanding of federal discrimination laws in Australian workplaces.

HREOC is concerned about the impact of the individual bargaining environment on more vulnerable workers. While it is still early days, some of the individual complaints we have received give us cause to be concerned that discriminatory provisions are creeping into workplace agreements. For example, bonuses for employees who take no unplanned leave such as carers or sick leave. Such provisions may indirectly discriminate against women as woman are more likely to need carers leave.

At the time WorkChoices was introduced, HREOC was in the middle of a two year project about paid work and family responsibilities. The lack of support for men and women struggling to balance paid work and family responsibilities was a problem before WorkChoices and it is still a problem after WorkChoices.  

Since WorkChoices HREOC is concerned that in the new individual bargaining environment, workers with family and carer responsibilities, largely women, may find themselves sacrificing either family friendly employment conditions or a better level of remuneration. This concern is underlined by well-documented evidence that women are less likely to strike strong bargains on pay than men.

In HREOC’s final paper in the paid work and family project – It’s About Time: Women, Men, Work and Family – we look at ways in which we can address these concerns by creating a legal and social environment that protects the rights of workers with family and carer responsibilities.

I will return to HREOC’s recommendations in It’s About Time later in this speech. But first, I would like to take some time to explain how HREOC’s complaint handling functions operate and discuss the emerging trends in employment related complaints. 

HREOC’s statutory complaints handling functions

HREOC is a statutory body independent of government. While our main function is to promote an understanding and acceptance of human rights in Australia, we are also charged with the responsibilities of investigating, and attempting to conciliate complaints of unlawful discrimination under the federal Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.

HREOC also has similar functions that are perhaps less well understood arising under the provisions in Part II of the Human Rights and Equal Opportunity Act 1986 (the HREOC Act) which deal with equal opportunity in employment. These provisions seek to implement in part Australia’s obligations under the Discrimination (Employment and Occupation) Convention 1958 (ILO Convention 111), which is a Schedule to the HREOC Act.

The pursuit of a remedy for alleged unlawful discrimination under one of the federal Discrimination acts, or for a contravention of ILO 111 must start with a written complaint to HREOC. All complaints are initially assessed in the same way to determine whether the complaint should be terminated as lacking in substance, and if not, whether it is suitable for conciliation. 

While a complainant who alleges unlawful discrimination under one of the discrimination acts can seek remedies through the Federal Court or the Federal Magistrates Court if conciliation fails, the ILO 111 complaints procedure does not provide an enforceable remedy. The President reports to the Attorney General that a contravention has occurred, recommends remedies, and the report is tabled in Parliament.

Not withstanding this limitation we still get a substantial number of ILO complaints. In the last financial year we received 87 complaints on grounds not covered by the unlawful discrimination Acts – 34 discriminated on the ground of criminal record, 16 on the ground of religion and 15 on the ground of trade union activity.

The conciliation process

HREOC’s complaints handling process is conciliation orientated.  HREOC is not an advocate for either side. It acts as an independent and unbiased conciliator. HREOC’s aim is to resolve the complaint in a fair and timely process with the minimum of cost and stress for either party. Parties do not require legal representation but there is a network of advocates that provides representation to HREOC’s to complainants and to respondents. In order, to make the process user friendly we hold conciliation conferences anywhere in Australia.  

Following the introduction of WorkChoices, HREOC’s immediate challenge has been to deal with the substantial jump in the number of employment-related complaints.  While there were some initial short term delays in allocating matters to investigating officers while new staff were recruited and trained, the rise in the number of the complaints has not led to an increased complaint processing time.

At all times matters that require urgent attention either because of imminent or very recent dismissal, or where the complainant is still employed and the alleged discrimination is ongoing, are allocated immediately on receipt. The average time taken for a complaint from receipt to finalisation of a complaint is still six months. Many are completed much sooner, but some are complex and take longer. In 2005-2006, 93 per cent of complaints were finalised within 12 months of the complaint being lodged.

When WorkChoices commenced, some media commentators made the broad suggestion that Equal Opportunity Commissions harbour an anti-employer bias. Speaking for HREOC, this is simply not the case. HREOC surveys a large number of parties who participate in conciliation and seek their assessment of the objectivity of the process. We consistently get percentage ratings from both sides in the 80 -90% satisfaction bracket, and usually slightly higher from respondent employers than from complainants.

Whereas the Workplace Relations Act provides a remedy for unlawful discrimination only where it results in termination, it is important to recognize that the unlawful discrimination Acts administered by HREOC provide remedies for discrimination where the employment relationship is still ongoing. Indeed, this is the case in many of the employment related complaints we process. Our staff are very conscious of the need to try and preserve the relationship between the employee and the employer.

One of the advantages of HREOC’s complaint process is that it has the potential to result in a range of outcomes from an apology to general damages, policy changes in the workplace, and even reinstatement in an exceptional case. Often by getting the parties to the table not only is the matter of complaint sorted out, but the relationship is saved. Only very occasionally is it necessary to refer to the anti-victimisation provisions in our legislation.

Another advantage of the HREOC process relevant to termination cases is that a 21 day time limit applies to applications to the AIRC, but there is no absolute time limit on complaints to HREOC. The President can decline to investigate a complaint more than 12 months old, but even then the complaint can still be taken to Court.

In the last five years HREOC’s conciliation success rate has steadily increased. In 2005-2006, 39 per cent of all complaints received were successfully conciliated compared to 32 per cent in 2002-2003. These figures include matters where we decide there are reasons why conciliation should not be attempted.  In those complaints where conciliation was attempted, 75 per cent of matters were resolved.  Where a complaint of unlawful discrimination cannot be conciliated, it will be terminated by the President, and the complainant then has 28 days to apply to the Court.

Complaints in employment related areas – recent trends

The type of employment-related complaints HREOC has been seeing since WorkChoices suggest that some employers have wrongly interpreted WorkChoices as a free rein to hire and fire as they please. While many employers know that direct discrimination in the workplace is unlawful, we still see cases where workers are dismissed on the basis or age, sex or pregnancy. Recent complaints in the areas of sex and age discrimination also illustrate that some employers either do not understand, or do not respect, the prohibitions on indirect discrimination.3

Indirect discrimination in the workplace – where employers impose a requirement or condition which disadvantages certain groups– is not a new problem. But as people move away from collective bargaining we are concerned that, as I have noted earlier, some of the provisions we are seeing in Australian Workplace Agreements indirectly discriminate against certain workers.

Let me give an example of a complaint from a woman who was dismissed after four months in a new job for ‘misconduct’. The alleged misconduct involved taking two days off which she claimed as leave, one to attend a funeral and another to care for her sick child, and for being ‘difficult about putting in extra hours’.

Her workplace agreement indicated she would be expected to work ‘standard hours of work’ and that the ‘company leave policy’ would apply.  However, on analysis that policy did not allow any leave in the first 12 months of employment. After a year in the job she could take leave but only if she gave four weeks notice and took leave for a minimum of one week.

The company’s standard work hours were 9-5. The complainant had asked that any meetings she was required to attend finish by 5:30 so she could pick her son up from child care.  Despite this request she was frequently asked to attend meetings outside of standard work hours; a practice which increased her child care fees and jeopardized her place with the child care centre.

Work practices like this are likely to be held to be discriminatory against women on the ground of sex for the very reason that women are much more likely to be affected by this type of requirement than men. There is a long line of discrimination cases where courts have accepted that women in our society carry the main responsibility for looking after children.

However, while women are statistically far more likely to bear the brunt of discrimination on the basis of family and carers responsibilities, we should not assume that this discrimination is a ‘woman’s issue’ that does not impact on men.

Let me give as another example, a recent complaint by a man who had been employed by a building developer for 18 months on recurring 3 month contracts. He required a week’s leave to care for his children while his wife, who had become ill, was hospitalised. He offered to work from home for the week but the offer was rejected. He had no option but to stay away from work to care for his kids. His employer contacted him and told him his services were no longer required and the contract was finalised. This looks like a case of direct discrimination caught by the Sex Discrimination Act – dismissal on the ground of family responsibilities.

HREOC is working very hard to remind employers and employees that WorkChoices does not give carte blanche to employers to hire and dismiss workers on whatever grounds they see fit, even if these grounds are discriminatory. To this end, HREOC is continuing educating employers and employees about their rights and responsibilities under federal discrimination law.

Educating employers and employees

Since WorkChoices the increase in complaints to HREOC has been accompanied by an over four-fold increase in the number of enquiries from employers and employees about their rights and obligations under federal discrimination law.  This underscores the importance of HREOC’s role in working with employers and employees to create a better understanding of federal discrimination laws.

In response to this demand, HREOC is seeking to educate both employers and employees about their legal obligations.

Through our ‘Good practice, good business guide’ section of our website employers are encouraged to create a discrimination and harassment free environment, while employees can obtain information about their rights under discrimination law on our ‘Work out your rights’ website. 

Our complaints handling section has also held over 150 information sessions for employers, employees and their representatives on what constitutes unlawful discrimination and the HREOC complaints process. Our officers are always available to address employer or employee groups on these matters.

Community concern about the impact of WorkChoices

Building awareness among employers and employees about their obligations under federal discrimination law is an important step towards creating fairer workplaces. However, in my view, systemic problems like the widespread unfairness in the distribution of paid work and family responsibilities and the lack of support for family friendly workplaces, should be addressed by legal and policy reform.

Over the last two years HREOC has been conducting community consultations as part of our project on striking the right balance between paid work and family responsibilities. During this time the WorkChoices legislation was debated and enacted. Many of the people who participated in HREOC’s community consultations expressed apprehension that the WorkChoices reforms would exacerbate the existing difficulties facing men and women already struggling to balance those responsibilities.

The individual bargaining environment

The focus after WorkChoices on individual bargaining is a double edged sword. In principle, a more flexible approach to working hours should make it easier for women – and men – to negotiate a better balance between work and family commitments. No doubt there will be winners from the increased focus on individual bargaining.

However, HREOC is deeply concerned that the sections of the community who have traditionally faced barriers in the labour market are again likely to lose out– people with disabilities, women, young people, Indigenous people, and people working in low wage jobs.

The danger is that the focus on individual bargaining will result in ‘hours flexibility’, which in reality means longer operating hours, and no real flexibility for employees in negotiating the balance between work and family life. In practical terms what this new flexibility could mean for some people is irregular working hours, difficulties organizing – and retaining – child care services and less time with the kids.

Pay equity

The gap between men’s and women’s wages is a key barrier preventing families from making the choices that best suit them. This is a real problem: I doubt you need reminding that the average weekly earnings for full time women workers is only 83.6 per cent of their male equivalents.

While the jury is still out on the impact of WorkChoices on pay equity, studies which suggest women are less likely to benefit from a culture of individual bargaining should not be ignored.

Instead, we need robust and vigorous monitoring of the wages and employment conditions in Australian Workplace Agreements with a particular emphasis on differentiated data for women and other vulnerable groups in the labour market.

The fact that the gender wage gap is growing larger, not smaller, demonstrates the need for government to step up and make a real commitment to achieving pay equity.4

Improving legal protections for workers with family responsibilities

Ultimately, HREOC believes that it is vital to a flexible, fair and productive workforce that all Australian workers be able to effectively negotiate wages and conditions that enable them to meet their social and family obligations. However, to do this we need to create a legal and social environment that values families and protects the rights of workers with family and carers responsibilities.

One of HREOC’s key recommendations in It’s About Time is to introduce a new Act – The Family Responsibilities and Carer’s Rights Act – which protects men and women from discrimination due to family responsibilities.

The reason we need this Act is simple: the current legal protections for workers with family responsibilities are seriously inadequate.  While the Sex Discrimination Act makes it unlawful to ‘directly’ discriminate against an employee by dismissing the employees on the basis of family responsibilities, employees are not protected from indirect discrimination or discrimination which occurs while they remain employed.

Moreover, although the family responsibilities provisions of the Sex Discrimination Act are available to both men and women, men do not generally avail themselves of this protection – perhaps because the Sex Discrimination Act is perceived as an Act which only protects women.

HREOC believes a new Family Responsibilities and Carer’s Rights Act should make direct and indirect discrimination on the basis of family and carer responsibilities unlawful in all areas of employment.  

Importantly, the new Act should recognise the right for all men and women workers to request flexible work arrangements due to family or carer responsibilities, and create a right to have the request reasonably considered by their employer.

This ‘right to request’ would not impose any obligations on an employer who is unable to meet the request due to genuine operational requirements, beyond the duty to reasonably consider the request. Yet the real power of ‘the right to request’ is its potential to effect cultural change by focusing attention on realistic and practical ways to instigate family-friendly work arrangements.

This proposal is designed to enable business to manage requests for flexibility with minimum red tape and maximum legal certainty. Ultimately, the beneficiaries of the right to request are both employees and employers. Employees can seek better ways to balance work and family responsibilities and employers can benefit from higher retention rates, and a happier, more productive work force. 

The legislation suggested by HREOC is not altogether novel! The ‘right to request’ provisions do no more than reflect the law under the Sex Discrimination as it presently applies to women in the workforce who have carer responsibilities for young children and to women returning to work after maternity leave. The proposal would extend ‘the right to request’ to men, and to employees seeking flexibility to care for a family member who suddenly becomes ill, or who needs assistance in old age.

This proposal is based on legislation which came into force in the United Kingdom in 2003. The experience of the United Kingdom is evidence of the benefits flexible working arrangements can have for employees and employers. A review of the legislation after the first two years of operation revealed that more than 80 per cent of requests for flexible workplaces had been granted and employers reported improved workplace relations, higher retention rates with consequential savings in recruitment and training costs, and lower absenteeism.

It's about time

In the new industrial relations landscape the challenge for Australia is to ensure we do not end up with two labour markets – one with great conditions and wages for those people whose skills are in demand and a second class labour market for everyone else.

Before WorkChoices there was a critical need to create a legal and social environment which provided better protection and support for workers with family and carers responsibilities. Since WorkChoices this reform is more important than ever. I urge you all to think seriously about the suggestions HREOC has made in the It’s About Time paper.

 


Endnotes

1. Now s 659 Workplace Relations Act 1996.

2. The most significant increase in complaints were in the areas of sex discrimination and disability

3. Indirect discrimination involves: (a)  imposing a requirement or condition which (b) disadvantages people with a particular attribute covered by law – for example in the SDA, people of the same sex as the aggrieved person and (c) which is not reasonable in the circumstances.

4. ABS Average Weekly Earnings figures for full time adults show a decline of 1.4 per cent in the gender pay gap over the last two years.  This means that the average full time working woman currently earns 83.6 cents in the male dollar compared with 85 cents in February 2005.

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